#### Woodward *et al. versus*Tudor.

1. Warrants 4900 and 4901 were taken out in 1794, in the name of Willink, and surveys made calling respectively for 4901 as southern boundary of 4900, *J A*AAA „ k ^ J , *A*A A1 - ______-.-i *- e A r\r\r\*¿1. and 4900 as northern boundary of 4901. Smith was in possession of 4900, then owned by Iiurxthal. There was a line made in 1806, supposed to be the southern line of 4900; afterwards, another line, of 1794, twenty-six rods south, was found, supposed to be the northern line of 4901. Smith, assuming that there was a vacancy between the two lines, urged Shoemaker to enter and make an improvement, he to have the west half and Smith the east. Shoemaker entered and improved his half, and, with Smith’s knowledge, sold his right to Tudor, whom Smith encouraged, etc., to improve. It was ascertained that the supposed vacancy was in 4900. He obtained the title of 4900. *Held,*that he was estopped from setting it up against the part of the supposed vacancy held by Tudor.

*2. Shoemaker and Smith having designated the lines of 1806 and 1794 as the lines of the vacancy, and agreeing which half each should take, the two halves became several and distinct tracts; the parties did not hold as tenants in common, nor would the possession of Smith interfere with that of Tudor.

3. Smith having sold his interest, Tudor’s possession was notice to Smith’s vendee, and he and his vendees were estopped from disputing Tudor’s title.

4. Where one encourages another to enter upon land and invest money or expend labor, assuring him that he will thereby acquire title, he cannot call in question such title,, though he acted in ignorance of his own right.

.5. Smith could recover from Tudor, by an equitable action of ejectment, onebjilf the purchase-money paid for the outstanding title.

6. Subsequently, the owners of 4900 and 4901, to adjust their dividing line, ran a diagonal line through the supposed vacancy, throwing the most of tire west part into 4901, and thus making Tudor’s part much less. Smith not being a party to making this line, although estopped from defeating Shoemaker’s title, was not bound to warrant against the owners of 4901.

7. Those claiming under Smith were in possession by a tenant of the eastern end of the vacancy; they cut all the timber from it; they were not liable under *383the act of March 29th, 1824 (cutting timber trees), for the timber cut on the eastern half.

8. The possession was founded on a *prima facie*title, at least, and trespass would not lie for taking the timber from it.

9. The plaintiff could not recover for timber cut on 4901; the title was in the owners of that tract, and they may recover for it.

10. Carr *v.*Wallace, 7 Watts, 394; McCormick *v.*McMurtrie, 4 Watts, 195; McKelvey *v.*Truby, 4 W. & S., 323; Millinger *v.*Sorg., 5 P. F. Smith, 215; cited.

March 27th, 1876.

Before Agnew, C- J., Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ.

Error to the Court of Common Pleas of *Elle*County, of January Term, 1876, No. 103.

This was an action of trespass q. c. f., commenced April 23d, 1870, by John Tudor, against Hiram Woodward, A. 0. Fenney, and-Barrows, under the act of March 29th, 1824, 8 Smith’s L., 283, 2 Br. Purdon, 1397, pi. 2, against cutting timber trees.

On the 3d of February, 1794, warrant No. 4900 was taken out in the name of W. Willink, and others, for 900 acres of land; a survey was made in pursuance of the warrant on the 16th of July, in the same year, for 990 acres and allowance; the survey called for a chestnut as the southwest corner, a maple the southeast corner, and for “ W. Willink and others” on the south; this survey was returned July 3d, 1800.

On the 5th of February, 1794, warrant No. 4901 for 900 acres was taken out in the name of W. Willink and others ; July 17th, 1794, a survey was made in pursuance of this warrant for 990 acres and allowance; this survey called for “ W. Willink 'and others ” on the north, for a chestnut as the northwest corner, and a maple as the northeast corner; it was returned July 6th, 1800.

From a point B (on the draft below) twenty-six rods from the maple D, there is a line, which dated .back to 1806, running west to a point A on the west line of both 4900 and 4901.

Prior to 1848 or 1849, Peter Smith was in possession of the south half of 4909. Supposing the line of 1806, AB, to be its south line, in making a survey he found a line further south, CD. Assuming that there was a vacancy between these two lines, he urged one William Shoemaker to go into, the possession of the supposed vacancy and improve it with Smith, Shoemaker to take the west end, Smith the east. Shoemaker did make improvements. Tudor rented from Shoemaker in 1852 and bought Shoemaker out on the 10th of October, 1854. The article from Shoemaker was: “ I do *384hereby assign, etc., all my right,- title, and interest, óf and to a certain tract of land, No. 4901, containing 247J acres, more or less, bounded on the north by land of Peter Smith, known as "William Shoemaker’s lot,” etc. About this time it was supposed by Smith and Shoemaker that there was no vacancy. Tudor continued in possession of the improvement, and on the 30th of January, 1866, took out a descriptive warrant for the’land between the line of 1806, AB, and the line CD, alleging it to be vacant; and the survey for 90 acres and 100 perches, made in pursuance of the warrant, was accepted February 8th, 1866. The northern half of 4901 had been sold for taxes, bought in for Smith and Shoemaker, and afterwards redeemed. .

Dram or 4900 and 4901.

*385The defendant became the owner of the timber on 4900, and cut from Tudor’s improvement the timber for which the suit was brought.

The cause was tried November 18th, 1874, before "Wet-more, P. J.

The plaintiff gave in evidence his warrant and survey above mentioned; the.land being described in the survey as bounded on the north by warrant 4900, south by warrant 4901, interest to commence May 1st, 1849.

*"William Shoemaker*testified: I went on Tudor’s tract in 1848 or 1849 ; cleared three small fields, three or four acres in a field, put up a log house and double log barn ; raised crops; Peter Smith lived on land north of me; there was an old line between us with new marks, it was the agreed line between us; I saw a line south at the time I was there; my buildings were on the west end of the tract. Tudor was cropping for me; I was there about three years ; left Tudor on when I went away. I sold to Tudor; the contract was in writing. I supposed the land was part of 4901; there was no particular part that I claimed. Smith did not claim the east end of 4901 when I sold; he had no claim over the line till Charles Horton bid it in for us at the tax sale ; he claimed the east end and I the west end; when bid in I thought it was on 4901; this was in 1854 ; I claimed only the west half after that; claimed as 4901, not as vacant land; Smith cleared some over the line east of me.

*Plaintiff*testified: I went on the place in October, 1852, rented it; put in a crop of rye on Shoemaker’s part, about six acres; bought Shoemaker out latter part of 1854. I know the lines the deputy surveyor made for me; the northeast corner is a 1794 corner, three hemlocks and a pine witness ; the corner was gone; the pine was blocked in 1867, it counted sixty-three then; the northwest corner was a chestnut and pine witness ; it counted sixty-three in 1861; I saw a 1794 maple, the southeast corner (this corner was admitted to be the original maple corner). The southwest corner was a stately small brush; the east and west line on the north side was heavily marked; never saw any 1794 marks on any east and west lines; there are 1794 marks on the north and south lines.

*Oscar Allen*testified that he had been at Tudor’s raising in 1849 ; there was little improvement at that time ; Shoemaker was raising a house there; Smith was there.

Plaintiff' further testified that "Woodward, the defendant, in 1866 took all the timber plaintiff’ had.

Other witnesses testified that defendants took off timber in 1867 ; also from the west end, in 1869 or 1870. Wood*386ward, called by plaintiff*, testified that he got 206,000 feet at the east end, and cut the west end in 1869 or 1870; it was cut for all the defendants.

Another witness testified that he scaled the timber cut on the west end; he estimated the west end twenty-seven rods between the two lines; the timber cut there amounted to about 112,000 feet.

The plaintiff here rested.

The defendant gave in evidence the Land Office records of 4900 and 4901, as above stated.

*James*Caldwell, surveyor, testified: I know the location of the Tudor survey, and those of 4900 and 4901; made a survey in 1867. Woodward, defendant, and others, were present. Found the maple corner on the east line between the tracts; it blocked to 1794; an original line runs north from the maple; the line trees counted to 1794; there is also an. original line running south from the maple to the southeast corner of 4901; there is a line, not original, running west from the maple; did not find the original northwest corner of 4901. I examined where Tudor claimed northeast corner of his warrant; there is no original corner nor witness-marks ; I think there was no vacant land there.

I found two lines, twenty-six rods apart, running east and west; the line from maple west is a new line; twenty-six rods north was a line dated back to 1804 or 1806; found witness to a corner of the northern line; also at that west end of south line; running from chestnut (northwest corner of plaintiff’s claim) to maple we run diagonally across his land. Did not find any original corner on the west; one-half of Tudor warrant is on 4900, the other on 4901, this made by running from maple in a diagonal line j no original marks on the west end of that line; there would be no original marks on it; this line was not run across originally; no original marks on the north side of Tudor warrant; the southeast corner of this warrant is the original corner; measuring the distance across the two warrants on the west side, and half of it is the end of the diagonal line; the east line of 4900 is three hundred and forty rods; the west line is three hundred and sixteen rods; the west line of 4901 is thl-ee hundred and twenty; if there were four original corners to the Tudor warrant there would be a vacancy.

*L.*Bird, another surveyor, testified in the main as Caldwell. Also, he was of opinion the Tudor warrant was not of a vacancy. Found three witnesses on the-northeast corner of Tudor warrant, none at the southwest corner; found post at its northwest corner, which witness called southwest corner of 4900; would run the diagonal line to divide 4900 *387and 4901. The line west from the maple & not original; it was along the south line of Tudor’s main field, and south of his barn: this would throw all his improvement north of that line; there is an old clearing south of the line; his north line runs through some improved land; the Tudor field and Smith field join; the line fence is the north line of the Tudor tract; it is on the western half; the Smith fence runs over on the Tudor warrant eight or ten rods on the east side of the strip; there is no line fence at this part.

There is a house and barn on Smith’s part; his improvement is about one hundred and twenty-five yards from the chestnut corner east to Tudor field; there is no line east from the southwest corner of 4900. The draft was made by witness to suit his work on the ground, and is correct.

*Alanson Gardner*testified: He bought shingle timber from Tudor in 1857; Tudor claimed the land we were working on as vacant. In 1857 and 1864 heard" conversations between Smith and Tudor. Smith, in 1857, said that if it was vacant land, Tudor could have the west half, and Smith the east. In 1863 Smith told Tudor he might use them, but must cut no timber; this was after he had run the lines. There is some clearing south of the north line on the east end; Smith cleared it; he cleared before 1859; the strip had not been run off at the conversation in 1857. In 1863 Smith claimed the strip as part of 4900. He worked the fields on the east end.

The defendants gave in evidence, deed dated November 30th, 1840, to F. P. Hurxthal, for 545 acres, south half warrant 4900, sold for taxes. Also deed, February 7th, 1860, Hurxthal to Smith, Hiram Woodward and W. D. Woodward for same, Smith one-half, and each of the Woodwards one-quarter. Also deed, W. I). Woodward to Hiram Woodward, May 5th, 1864, for W. I). Woodward’s interest. Also deed, Smith to O. ,R. Early, June 6th, 1864, for Smith’s interest. Also, Early to Enos Hays, July 23d, 1864, for same. Also deed, Hiram Woodward to Enos Hays, August 7th, 1866, for an undivided half. Also agreement, Hays with Hiram Woodward, July 21st, 1866, for the timber on the 545 acres. Also assignment, Woodward to Finney & Barrows, for an interest to extent of two-thirds of this agreement. Also sale, 495 acres of4901, June 12th, 1854,for taxes to C. Horton; on redemption February 27th, 1856.

*J. Van Brabant*testified: I farmed the east end of Tudor strip in 1867,1868, 1869; there were two fields and a third grown up with brush. I cleared and fenced in 1868, and used woodland for fence and firewood. Nine or ten acres cleared over north line. Left in 1873. Farmed Tudor’s *388place one year. Tudor claimed the land, and sued me. Smith left. I rented from Hays five years, and paid him the rent.

*jEnos Hays*testified: Tudor said, after witness had bought from Smith, that the vacant strip belonged to Smith’s place; he said he never intended to clear more than the west end, and pointed out where Smith and Shoemaker had divided north and south.

*Hiram Woodward*testified: I have talked several times with Tudor about his claim; first about 1857 or 1858; Smith and he were together ; there were two east and west lines across 4901, near the centre of the tract; they claimed the north half of 4901 to be vacant from one of these lines to the north line of Tudor strip, or up to the original line. Tudor was living on the west end, Smith on the east; if vacant, Tudor to have the west end, Smith the east.. Smith claimed to the maple as corner of his tract, the original corner of 4900 and 4901. Tudor said he did not claim the strip if the maple was original. Ross surveyed it, and pronounced the maple a corner. Smith and Tudor both gave up that part, being vacant^ and proposed to buy. Tudor wanted to buy the strip from Smith; he said he did not care about selling. Tudor could stay there as long as he lived, but he did not want him to cut any timber. I had bought when Ross surveyed. Tudor had, before I purchased, claimed the west end if it was vacant, but if not vacant he did not claim any.

There was other testimony that when the maple was determined to be the corner, Smith said he would give him the land whilst he lived, but he, Smith, reserved the timber, as he had sold it.

Defendants rested.

Plaintiff, in rebuttal, showed the sale, February 29th, 1849, of 4900 — 545 acres — for taxes of 1846,1847, F. P. Hurxthal, owner ; redeemed, April 80th, 1849, by Peter Smith.

*Plaintiff*testified: Smith said he had persuaded Shoemaker to go on; he knew there was vacant land. Smith showed me. some lines and corners when I went on, and helped me to build the fence on the south line; said it was the' line. Smith claimed to the chestnut corner. Smith showed me all the lines and corners before I bought from Smith. He testified also in contradiction of witnesses of the defendants.

The deposition of Peter Smith was read by plaintiff: he testified as to the purchase of 545 acres of 4900 from Hurxthal ; that by a survey he found the hemlock on line of 1806 to be his southeast corner; by another survey he found an old line further south; did not know which was south line of 4900. Shoemaker went into possession between these two *389lines ; Smith urged him to go on and improve with him, he to take the west, Smith the east, supposing it to be vacant. Shoemaker built a log house and barn, cleared, broke, and fenced about twelve acres. Smith helped him; saw him expend labor. He was a poor man; had to work elsewhere for his living. Tudor took possession after Shoemaker left. Tudor continued to improve as he was able; he was old and poor; raised a crop every year. Smith told him he always thought it was vacant, but if it was included in 4900 he might improve it, and use it, free of rent, while he lived, but should not cut the timber. He might claim the west half, and Smith the east. He told Tudor, before and after he had bought from Shoemaker, that he (Smith) claimed half of the strip if 4900 did not cover it. Shoemaker went into possession under the impression that it was vacant. Smith sold half his interest in 4900 to Hiram "Woodward, for $2500.

The plaintiff submitted the following points:

1. If the corner of 4900 and 4901 were marked on the ground originally, the marks on the ground control the returns and calls of survey.

2. If the northwest, northeast, and southeast corners of the Tudor warrant are original corners of 4900 and 4901, there was a vacancy, and the plaintiff is entitled to recover.

3. If Peter Smith was the vendor of the defendants, or the defendants were his privies, and in 1848 and 1849 he encouraged Mr. Shoemaker to improve,stating that he believed it vacant land, and afterwards he made the same statements to Mr. Tudor, and Shoemaker and Tudor were induced to improve and patent the land under such declarations of Smith, the defendants are estopped from denying the land is vacant..

The defendants’ points were:

1. Under the evidence in this case there was no vacant land between warrants 4900 and 4901.

2. If there be no vacant land between 4900 and 4901, John Tudor had no title to the land from which the timber in controversy was cut, and cannot recover, unless the facts are such as to estop the defendant from denying the plaintiff’s title.

3. Under-the facts in this case there can be no estoppel as against defendant, beyond the undivided one-half derived through Peter Smith.

4. There can be no recovery for timber cut prior to the act of 4th of May, 1869.

5. If the jury believe that prior to the purchase from Hurxthal by the defendant Mr. Tudor told him that he (Tudor) *390claimed the land if vacant and not otherwise, the plaintiff cannot recover.

6. If the jury believe there was an agreement between Peter Smith and Shoemaker that Shoemaker should occupy and use the west half of vacant land and Smith the east half, and each occupied and claimed accordingly, there can be no recovery by plaintiff for timber cut on the east half.

7. If the jury believe that John Van Brabant was in possession of the east half of the disputed land in 1867 and 1868, and when the timber was cut therefrom, cultivating the improved lands and using the woodland adjacent, as farmers usually do, for fences and firewood, then plaintiff cannot recover for timber cut on the east half.

8. No estoppel against defendant in favor Of the plaintiff arises out of the facts in this case upon which a recovery can be based.

The Court answered plaintiff’s points as follows :

I. Affirmed as an abstract proposition, but for answer see answer to defendants’ first point.

2'. If the facts are as assumed in this point, it is true; but for answer to this, see defendants’ first point.

3. Affirmed.

The 1st, 2d, 3d, 6th, and 6th points of defendants were affirmed ; the 4th and 7th denied ; and the 8th, “in its application to the evidence in this case, answered in the negative, and the facts referred to the jui’y.”

The Court further charged:

“ There is no vacancy, and we tell you the plaintiff’s title by warrant and survey is null and void.

“ The defendants do not claim to hold the half of the land under Peter Smith,and therefore as to that half the estoppel does not apply.”

The verdict was for the plaintiff for $780, single damages. Rule was taken by plaintiff to show cause why the damages should not be trebled ; and same day rule by defendant for a new trial; afterwards'the plaintiff remitted one half of the verdict, and thereupon the rule for a new trial discharged, the rule for trebling the damages, made absolute, and judgment for the plaintiff for $1170 entered.

The defendants took a writ of error. They assigned for error:

2 and 3. Denying the defendants’ 4th and 7th points.

4. Affirming plaintiff’s third point.

5. Denying defendants’ 8th point.

J. 6r. *ilall,*for plaintiffs in error.

The verdict was based upon the estoppel as to the undivided one-half; the effect *391would be to make the plaintiff and defendants tenants in common. Tudor under the law prior to act of May 4th, 1869, could not maintain trespass against his co-tenants: Filbert *v.*Hoff, 6 Wright, 97; Boults *v.*Mitchell, 3 Harris, 380; Bennet *v.*Bullock, 11 Casey, 367 ; the enactment should have only a prospective operation: Dewart *v.*Purdy, 5 Casey, 117. Trespass q. c. f. cannot be maintained by a claimant out of possession for injuries to land committed by an adverse claimant in possession. To maintain trespass the plaintiff must have had the actual possession at the time of the injury: Greber v. Kleckner, 2 Barr, 291. As against the holder of a hostile title having actual adverse possession, he must first vindicate his right by action of ejectment. Having done that, even a tenant in common may maintain trespass for mesne profits: Critchfield *v.*Humbert, 3 Wright, 428. John Van Brabant was in the actual possession of the east end of the land'in dispute, as tenant of Enos Hays. The timber was cut under authority of Hays. If this possession Was exclusive of the plaintiff, he could not maintain trespass until he had first recovered in ejectment. And if it was a possession concurrent w'ith the plaintiff, the timber on the east end having been cut prior to May 4th, 1869, the plaintiff could not recover :. Filbert *v.*Hoff, *supra.*

The fundamental principle of equitable estoppel is, that when a loss must fall on one of two innocent parties, it shall be borne by him whose fault occasioned it. But where they are equally innocent and equally in fault, the doctrine has no application. Therefore, to constitute an equitable estoppel, it is a necessafy ingredient *“*that the actor, having no means of information, was, by the conduct of the other, induced to do what otherwise he would not have done:” Com. *v.*Moltz, 10 Barr, 533.

If Smith would be estopped from denying Tudor’s title, it does not follow that the defendants are. It is' true they are privies of Smith, but it is also true that their vendor, under whose title they cut, was a purchaser for value, having paid $2500 for Smith’s interest. And he had no notice of the estoppel against Smith, unless the possession of Tudor was constructive notice to him.

Possession, to be notice, must be actual and unequivocal: 2 Am. Lead. Cases, 165, 167; Meehan v. Williams, 12 Wright, 238. There would be no notice, therefore, of title in Tudor to land of which he had not the actual possession. The possession of Shoemaker or Tudor was, at the date of the purchase by Hays of Smith’s interest, confined to the improvement, and their title by adverse possession would cover no more. The constructive notice given by this possession could not extend beyond the possession itself: McCall *v.**392Neely,. 3 Watts, 70; Ross v. Barker, 5 Id., 391. But the' timber in. controversy was cut on land not in the actual possession of Tudor; and, as to it, there was not notice. In Billington *v.*Welsh, 5 Binney, 129, the estoppel, resting upon acts and declarations of Smith, as against purchasers for value, is to be considered a secret equity or trust. When, in 1860, Smith acquired the legal title, the principle of equitable estoppel, if applicable, converted him into a trustee for Tudor. Pie could have gone into a court of equity and compelled a conveyance. It was his duty to require a conveyance ; and, if Smith refused, to file his bill in equity to compel him. He would thus have given notice of his rights. Having failed to do this, and having never made any known claim by way of estoppel, he shall not be protected, as against purchasers. The *bona fide*purchaser of the legal title is not. affected by a secret trust of which he has riot had distinct, express, and positive notice. The possession of a *cestui que*trust, and the exercise by him of every act of ownership, is not such notice: Scott v. Gallagher, 14 S. & R., 333; Jaques v. Weeks, 7 Watts, 261; Plumer v. Robertson, 6 S. & R., 179; Leach *v.*Ansbacher, 5 P. F. Smith, 85.

The estoppel rests upon acts and declarations of Smith before he had the title. The title of Hurxthal was not affected by them. Smith did nothing while the title was in him to vitiate it. Are purchasers to be affected by acts of a party when he had no title, because be subsequently appears as a link in tbe chain ? Lawrence v. Luhr, 15 P. F. Smith, 236 ; Haul v. Lawrence, 23 Id., 410.

*Gr.*A. *Bathbun*and *II.*Souther, for defendant in error.

The act of May 4th, 1869, gives a remedy between co-tenants the same as exists between strangers ; in this case the defendants claimed to besóle owners of the timber, and that no title existed in the plaintiff; they did not admit or endeavor to show that the plaintiff was a co-tenant with them in the timber cut.

As to Van Brabant’s possession of the land upon which the timber was cut, at the time of the cutting. The action is under the act of March 29th, 1824, and is not founded upon possession of the land where the timber is cut, but upon the title to the timber. The cutting was done “ without the consent of the-owner,” and being so done the remedy under the statute is complete.

If Shoemaker and Tudor were encouraged by Smith to go upon the land, stating that he believed it to be vacant, and acting under such encouragements they went on and improved the land and patented it, then Smith and his privies *393are estopped from denying the land is vacant: Miller *v.*Miller, 10 P. F. Smith, 16. Although Smith had not title when he encouraged Smith and Tudor to make improvements, etc., yet he is estopped from setting up a title acquired afterwards.

Mr. Justice Gordon

delivered the opinion of the Court, May 22d, 1876.

We gather from the evidence, and we must take it the jury so found, that Smith, the vendor of the defendants, aud Shoemaker and Tudor, the laker the vendee of the former, considered the line of 1806, from the hemlock, as the south line of 4900, and the line near the middle of 4901 as the northern boundary of that tract, thus leaving, as they supposed, a vacancy of some four or five hundred acres between the two surveys. According to Smith’s own testimony, he urged Shoemaker to go on to aud improve this land, under an arrangement that Shoemaker was to occupy the western half thereof and he the eastern. Shoemaker did so enter; erected a log house and barn, and cleared, broke up, and fenced some ten or twelve acres of the land. This entry of Shoemaker appears to have been made in the year 1849; it also appears that Smith cleared some land over the supposed southern line of 4900, on the eastern end of the so-called vacancy. About the year 1854 these parties ascertained that they had made a mistake as to the vacancy, but still supposing the line of 1806 to be the southern line of 4900, they were left under the impression that 4901 extended, to that line, and as the northern half of that tract was advertised to be sold for taxes, they procured the purchase of' it for themselves, but failed by this method to acquire title, for the laud was redeemed.

On the 10th day of October, of this year (1854), Shoemaker sold to Tudor, Smith having knowledge thereof; and also encouraging him to make some further improvement by aiding him therein. Tudor continued, from that time,, to occupy the premises, and his right was unquestioned until the year 1858, when it was discovered that the true southeast corner of 4900 was a maple some twenty-six rods south-of the hemlock. This discovery demonstrated that the whole- or a part of the Shoemaker and Tudor improvement, and the-whole of that of Smith was upon 4900. Smith, if we take-his testimony, then purchased this land from Hurxthal, the-owner, and afterwards conveyed it to Woodward and Hays. From the Hurxthal deed it appears, however, that but one-half of- this strip was conveyed to Smith, and the other half to the two Woodwards. It was upon this, we presume, that *394the Court made the title to rest, for the learned judge says: “ The defendants do not claim to hold the half of the land under Peter Smith, and, therefore, as to that half the estoppel does not apply.” The claim of the plaintiff is, then, limited to the one-half of the timber cut on the land claimed by him. The above statement disposes of the defendant’s fourth point, for the parties having designated the line of the whole claim, to wit, the line of 1806, and the line through the middle of 4901, as the northern and southern lines of the supposed vacancy, and, by agreement, indicating that one should have the eastern and the other the western half, a matter that could at any time be fixed by measurement, it is clear that these two parts became several and distinct tracts, and the parties would not hold as tenants in common, neither would the possession of the east half, by the defendants or their tenants, in anywise interfere with or affect the possession of the plaintiff as to the west half. ThU also disposes of the question of notice to Smith’s vendees of Tudor’s claim ; for his possession, being exclusive and hostile, would, of itself, be notice. Whilst, therefore, it is apparent that the claims of the parties were thus clearly ascertained and defini ely settled, it is just as cleir that Smith and his vendees were estopped from disputing the ti tie of Shoemaker and Tudor to so much of the western part of the strip in dispute as lies within tract 4900. For where one advises and encourages another, as Smith did Shoemaker, to enter upon, invest his money in, or expend his labor on land with the assurance that he will thereby acquire title to it, such a one will not be permitted afterwards to call in question such title, even though he acted in ignorance of his own right: McKelvey *v.*Truby, 4 W. & S., 323; McCormick *v.*McMurtrie, 4 Watts, 195 ; Carr *v.*Wallace, 7 Watts, 394; Millinger *v.*Sorg, 5 P. F. Smith, 215. Smith says he *urged*Shoemaker to go on and impr’ove the land, together with himself, he to take the east half and Shoemaker the west; and, when it was found that the idea of a vacancy was a mistake, Smith joined with Shoemaker in endeavoring to secure the land to themselves by a treasurer’s deed. Under such circumstances, to allow Smith to sweep away the fruits of the industry of Shoemaker and Tudor, through the acquisition of an outstanding title, would be not oidy contrary to the law of estoppel, but unjust: If, in order to perfect their common title, ¡Smith was obliged to buy in the Hurxthal title, he might have recovered from Shoemaker or Tudor one-half the purchase-money, on tender of a. deed for the part claimed by them, by an equitable action of ejectment, and in this manner strict justice would have resulted *395to all parties. So far, then, the Court were right in their charge, and in their answers to the points put by the parties. But, it will be apparent, from the above view of the case, that, as Shoemaker was entitled to the western half of the mutual claim, so Smith was entitled to the eastern half. That Shoemaker’s part has been made materially less than the other in consequence of the diagonal direction of the north line of 4901, matters not, for that results not from the fault of Smith. Whilst he is estopped from setting up -his own title to defeat Shoemaker’s, he is not called upon to warrant against the owners of 4901. Obviously, then, the plaintiff ought not to have recovered for the timber cut on the eastern end of the strip in controversy; hence the defendants were entitled to an affirmative answer to their seventh point; for, if they were in the actual possession of that part of the tract, by their tenant, Brabant, it is apparent that that possession was founded upon a *prima facie,*if not an absolute title to the premises, and, by all rule, trespass would not lie against them for timber taken therefrom. As our attention has been called to it by the argument of counsel, we may say that, of course, the plaintiff' cannot recover for timber cut upon 4901, for the title to such timber is in the owners of that tract, and they may have their suit therefor; to permit the plaintiff' to recover would be to permit him to recover that which does not belong to him, and to subject the defendants to a double penalty for a single trespass. We-discover no other error upon the record except the one indicated, but for that the judgment is reversed, and a *venire facias de novo*awarded.